Immigration Q And A January 2015

Q. I am a US Citizen. My mother just got her green card. Who should apply for 25 year old my sister to come to the US ?
A. If your sister is married, your mother cannot apply for her until she becomes a US Citizen. If your sister is not married, both you and your mother can apply for her. The current wait for green card holders petitioning for their children over 21 is about 8 years. In 5 years, your mother will be eligible for US citizenship and if she becomes a citizen, your sister’s wait time will be shortened by about one year. The wait time for siblings applying for siblings is about 10 to 11 years.

Although the wait time is shorter for your mother to apply for your sister, you should also file a petition for your sister. If your sister gets married before your mother becomes a US citizen, your mother’s petition will become invalid. If your mother cannot get her citizenship for whatever reason, you would be dooming your sister to choose between marriage and coming to the United States. If you apply for her, she may have to wait longer, but she can marry, and her husband will be able to immigrate with her.

Q. I came to the United States more than 20 years ago. I applied for LULAC and was denied. My son, who was born in the US, is now turning 21. Can he file for my green card or will I have problems?

A. Generally, yes. Your son’s citizenship will excuse your overstay and any unauthorized employment, no matter how long. In most cases, you will need to prove that you entered legally (with a visa). If you entered the US by illegally crossing a border, you will not be eligible to apply for your green card. There are some exceptions to that. If you used false documents, you may be able to get a waiver (an exception) to let you get your green card. If you have been arrested in the past or have traveled for too long after your initial entry, you may also have problems getting your green card through your son.

Q. I received my two year green card through marriage to a US citizen. It will expire in six months. Our relationship is not working out very well and my husband has told me that he wants a divorce and he will not sign the papers to extend my green card. What shall I do?

A two year green card is called conditional residence. To extend your card, you need to file a petition to remove the condition on your card. Generally, you and your husband have to file the petition together – i.e. you both sign it. You have to send the petition to immigration during the last three months of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. If your husband refuses to file a joint petition, you have two options. If your husband has abused you physically or has subjected you to extreme mental cruelty, you may file the request to extend your residence without your husband’s signature, as long as you have proof of the abuse. The proof can be either a police report or a psychological evaluation from a licensed mental health professional. In this case, in general you must still be married when filing. If there was no abuse, you may file without your husband’s signature, but only if there has been a divorce, and you must still provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.

Q. I went to someone to help me with my immigration application. She was not an attorney, but she said that she worked with an attorney. I paid her money and she told me that she filed the application with immigration. I never received any letter from immigration and she refused to take my calls. After about a year, I went to the immigration office and they told me my case had been denied. When I went to talk to the attorney that she said she was working with, he told me that he did not know any person by that name. What do I do now?

Unfortunately, you have been the victim of a scam. Only attorneys are allowed to represent people in immigration cases. Everyone else is not allowed to do anything but type in your answers to questions on the forms. They are not even allowed to tell you which forms you should use or how to answer the questions. Many immigrants think that they are saving money by having non-lawyers prepare their immigration paperwork, but if your case is denied, you have to spend more money on refiling. Some immigration “paralegals” charge as much or more than real lawyers. Even worse, bad immigration advice can land you in removal proceedings.
Sadly, the only place you can go for recourse is the police. Many immigrants are afraid to go to the police. Often, the police can do little to get your money back. While attorneys are responsible to a bar association to maintain their license, non-lawyer immigration “consultants” have no license or governing organization.
Before filing anything with immigration, see a lawyer. Many lawyers offer free or low cost consultations. You should get legal advice to make sure you are eligible to file the application. Check to make sure that the lawyer is licensed and in good standing with the bar of his/her state.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 17 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.